Pigott v. Heath

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KENNETH PIGOTT, JR., ET AL. CIVIL ACTION

v. NO. 18-9438

KAYLA HEATH, ET AL. SECTION "F"

ORDER AND REASONS

Before the Court is defendant Swift Transportation Co. of

Arizona, LLC’s motion for partial summary judgment dismissing the

plaintiffs’ independent negligence claims asserted against it. For

the reasons that follow, the motion is GRANTED.

Background

This personal injury case arises out of a sideswipe collision

between an 18-wheeler and a Buick sedan.

The collision occurred in the evening on November 5, 2017.

Kayla Heath was driving an 18-wheeler tractor-trailer in the left

lane of Highway 21 in Bogalusa, Louisiana. She was working for

Swift Transportation Company, hauling Wal-Mart grocery products on

her regular route from Swift’s Robert, Louisiana terminal. Kenneth

Pigott was driving a 1997 Buick sedan in the right lane, and

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Dehendric Bickham was riding along. When Heath changed lanes, she

moved the 18-wheeler into the right lane and struck the Buick.1

Pigott and Bickham sued Heath and Swift in state court,

alleging that Heath’s negligence in failing to keep a proper

lookout, improper lane change, and careless operation caused the

collision and that Swift was vicariously liable under a theory of

respondeat superior. Pigott and Bickam allege (and Swift has

stipulated in its answer) that Heath was operating the tractor

trailer in the course and scope of her employment with Swift at

the time of the collision. Heath and Swift timely removed the

case to this Court, invoking the Court’s diversity jurisdiction.2

Pigott and Bickham then amended their complaint to add claims of

direct negligence against Swift (including claims for negligent

hiring, training, supervision, and entrustment).3

1 Liability is disputed. Swift and Heath say Pigott is at fault

and, in any event, the defendants submit that there was only minor

damage to each vehicle from the sideswipe and both Pigott and

Bickham refused medical care at the scene because they said they

were uninjured. Pigott and Bickham say that the tractor-trailer

crossed the highway center lane, striking the Buick, forcing it

off the road, and causing their car to spin out of control and

then to strike a ditch and exposed metal poles.

2 Pigott and Bickham are citizens of Louisiana. Heath is a citizen

of Mississippi. Swift is a limited liability company with one

member: a Delaware corporation with a principal place of business

in Arizona.

3 When they moved to amend their complaint, the plaintiffs also

added a claim for punitive damages under Arizona law. Magistrate

Judge North allowed the amendment, including the Arizona-law

punitive damages claim, over Swift’s objection. But Swift appealed

2

Swift now seeks partial summary judgment dismissing the

plaintiffs’ claims that Swift negligently hired, trained,

supervised, and entrusted Heath.

I.

Summary judgment is proper if the record discloses no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law. FED. R. CIV. P. 56(a). A dispute is

“genuine” if “the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty

Lobby, 477 U.S. 242, 248 (1986). A fact is “material” if it “might

affect the outcome of the suit.” Id.

The Court emphasizes that the mere argued existence of a

factual dispute does not defeat an otherwise properly supported

motion. See id. Nor do “[u]nsubstantiated assertions, improbable

inferences, and unsupported speculation[.]” Brown v. City of

Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003); Hathaway v.

Bazany, 507 F.3d 312, 319 (5th Cir. 2007)("[T]he nonmoving party

cannot defeat summary judgment with conclusory allegations,

unsubstantiated assertions, or only a scintilla of evidence.").

that ruling and moved for partial summary judgment on the Arizona-

law punitive damages claim. The Court granted Swift’s motion for

partial summary judgment (dismissing the punitive damages claim),

which mooted the appeal.

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Therefore, "[i]f the evidence is merely colorable, or is not

significantly probative," summary judgment is appropriate.

Anderson, 477 U.S. at 249-50 (citations omitted).

Summary judgment is also proper if the party opposing the

motion fails to establish an essential element of his case. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also In

re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir.

2017)(citation omitted)(If the non-movant will bear the burden of

proof at trial, “the movant may merely point to an absence of

evidence, thus shifting to the non-movant the burden of

demonstrating by competent summary judgment proof that there is an

issue of material fact warranting trial.”). In this regard, the

non-moving party must do more than simply deny the allegations

raised by the moving party. See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he

must come forward with competent evidence, such as affidavits or

depositions, to buttress his claims. Id. Hearsay evidence and

unsworn documents that cannot be presented in a form that would be

admissible in evidence at trial do not qualify as competent

opposing evidence. Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); FED. R. CIV. P. 56(c)(2).

Ultimately, to avoid summary judgment, the non-movant “must go

beyond the pleadings and come forward with specific facts

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indicating a genuine issue for trial.” LeMaire v. La. Dep’t of

Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).

In deciding whether a fact issue exists, the Court must view

the facts and draw reasonable inferences in the light most

favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372,

378 (2007); Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d

507, 513 (5th Cir. 2018). Although the Court must "resolve factual

controversies in favor of the nonmoving party," it must do so "only

where there is an actual controversy, that is, when both parties

have submitted evidence of contradictory facts." Antoine v. First

Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation

marks and citation omitted).

II.

A.

Where, as here, jurisdiction is based on diversity, the Court

applies the substantive law of the forum, Louisiana. See Boyett v.

Redland Ins. Co., 741 F.3d 604, 607 (5th Cir. 2014) (citing Erie

R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).

Civil Code Article 2315, Louisiana’s source of negligence

liability, instructs that “[e]very act whatever of man that causes

damage to another obliges him by whose fault it happened to repair

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it.” LA. CIV. CODE art. 2315. Taking into account the conduct of

each party and the circumstances of each case, courts employ a

duty-risk analysis to determine whether to impose negligence

liability. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p. 7

(La. 3/10/06); 923 So. 2d 627, 632.

To recover under the duty-risk approach, the plaintiffs must

prove five elements: (1) the defendants had a duty to conform their

conduct to a specific standard; (2) the defendants' conduct failed

to conform to the appropriate standard; (3) the defendants'

substandard conduct was cause in fact of the plaintiffs’ injuries;

(4) the defendants' substandard conduct was a legal cause of the

plaintiffs’ injuries; and (5) actual damages. Audler v. CBC

Innovis, Inc., 519 F.3d 239, 249 (5th Cir. 2008)(citation omitted).

If the plaintiffs fail to prove one of these elements, then the

defendants are not liable.

B.

Pigott and Bickham seek to recover damages for both driver

Heath’s and employer Swift’s negligence. They pursue two

negligence theories against Swift: (1) vicarious liability for

Heath’s negligence because she was acting in the course and scope

of her employment with Swift at the time of the collision; and (2)

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direct liability insofar as Swift negligently hired, trained,

supervised, and entrusted Heath with a dangerous vehicle. Swift

submits that the plaintiffs’ direct negligence claims against it

should be dismissed because a plaintiff cannot simultaneously

pursue negligence under a theory of respondeat superior and a

direct negligence theory against an employer for the same incident

where, as here, the employer stipulates that the employee acted in

the course and scope of her employment. Joining a chorus of other

federal district courts making an Erie guess and siding with

employer-defendants on this issue, the Court agrees.4

It is undisputed that Louisiana offers no binding precedent

concerning whether simultaneous causes of action can be pursued

against an employer under the doctrine of respondeat superior as

well as the direct negligence of the employer in hiring, training,

or supervising, when the employer has stipulated that the employee

acted in the course and scope of employment. Absent a final

decision by the Louisiana Supreme Court, then, the Court is obliged

to make an Erie guess and determine how the state high court would

4 Second, and alternatively, Swift submits that the independent

negligence claims must be dismissed because the plaintiffs have

failed to establish a genuine issue of material fact for trial.

The Court need not reach Swift’s alternative ground for summary

relief.

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resolve the issue. See In re Katrina Canal Breaches Litig., 495

F.3d 191, 206 (5th Cir. 2007).

Although there is no binding case literature resolving this

issue, persuasive authorities have chartered this very territory.

Other Sections of this Court and other federal district courts in

Louisiana have uniformly held that, when an employer is

indisputably vicariously liable for the negligent acts of its

employee, the plaintiff cannot also maintain a direct negligence

claim against the employer. See Andry v. Werner Enterprises of

Nebraska, No. 19-11340, 2020 WL 419296, at *1 (E.D. La. Jan. 27,

2020); Coffey v. Knight Refrigerated, LLC, No. 19-3981, 2019 WL

5684258, at *3 (E.D. La. Nov. 1, 2019)(Morgan, J.); Giles v. Ace

Am. Ins. Co., No. 18-6090, 2019 WL 2617170, at *2-3 (E.D. La. June

26, 2019)(Vance, J.); Thomas v. Chambers, No. 18-4373, 2019 WL

1670745, at *7 (E.D. La. Apr. 17, 2019)(Vance, J.); Vaughn v.

Taylor, No. 18-1447, 2019 WL 171697, at *3 (W.D. La. Jan. 10,

2019); Franco v. Mabe Trucking Co., Inc., No. 17-871, 2018 WL

6072016, at *4 (W.D. La. Nov. 20, 2018); Wright v. Nat’l Interstate

Ins. Co., No. 16-16214, 2017 WL 5157537, at *3 (E.D. La. Nov. 7,

2017)(Fallon, J.); Wilcox v. Harco Int’l Ins., No. 16-187, 2017 WL

2772088, at *3 (M.D. La. June 26, 2017); Dennis v. Collins, No.

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15-2410, 2016 WL 6637973, at *7 (W.D. La. Nov. 9, 2016).5 These

cases consulted Libersat v. J & K Trucking, Inc., 772 So.2d 173,

179 (La.App. 3 Cir. 2000) to make an Erie guess as to how the

Louisiana Supreme Court would decide the issue. Libersat upheld

the trial court’s decision to refrain from instructing the jury

that the defendant had a duty to exercise care in hiring and

training its employee, given that there was no dispute that the

driver was operating the vehicle in the course and scope of

employment. Id. If the employee is found negligent, the court

reasoned, the employer is automatically liable; whereas, if the

employee is not negligent, then no amount of negligence in the

hiring or training of him would render the employer liable. Id.

Embracing this reasoning, federal district courts in Louisiana

have extrapolated that, if a jury charge on the employer’s standard

of care is unnecessary under the scenario at issue, then summary

judgment on direct negligence claims is likewise appropriate. See,

e.g., Thomas, No. 18-4373, 2019 WL 1670745, at *7. Stated

5 A state court of appeal was persuaded by Dennis. See Wheeler v.

U.S. Fire Ins. Co., 2019 WL 2612903 (La.App. 1 Cir. June 13,

2019)(unpublised)(reversing trial court judgment and granting

defendant’s motion for partial summary judgment, dismissing the

direct negligence claims). The plaintiffs offer a Judgment and

Reasons for Judgment by a state district court that was not so

persuaded, Smith v. Hudson Ins. Co., Docket Number C-20154906B,

15th JDC, Parish of Lafayette (11/4/19)(denying defendant’s motion

for partial summary judgment).

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differently, and considered through the causation lens of the duty-

risk analysis:

If the trier of fact finds that [the employee] was

negligent and that [her] negligence was a cause-in-fact

and legal cause of [the plaintiffs’] injuries, then [the

employer] is liable for the [employee’s] actions. If

[she] was not negligent, then no amount of negligence on

the part of [the employer] in training or supervising

h[er] could have been the cause-in-fact or legal cause

of the collision and [plaintiffs’] injuries.

Dennis, 2016 WL 6637973, at *8.

Though not bound, this Court, too, is persuaded by the

principles embraced by the case literature. Application of these

same principles entitles Swift to partial summary judgment here.

To be sure, Swift will be “answerable for the damage occasioned

by” Heath. See LA. CIV. CODE art. 2320. Where, as here, vicarious

liability based on respondeat superior is undisputed, Swift’s

responsibility is coextensive with the responsibility of Heath,

the employee who allegedly committed the tort by driving

carelessly, thus rendering academic any allocation of fault

between employer and employee. The plaintiffs nevertheless urge

the Court to disregard this analogous authority, insisting that

the jury should determine whether Swift was comparatively at fault

for the plaintiffs’ damages. They invoke Louisiana Civil Code

article 2323, which requires that a jury allocate fault between

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the parties.6 The plaintiffs also invoke public policy

considerations in an attempt to defeat summary judgment. But these

same arguments have been considered and uniformly rejected by the

line of authority that persuades this Court. See, e.g., Giles,

2019 WL 2617170, at *3 (noting that “there is no need to allocate

6 The plaintiffs also invoke Roberts v. Benoit, 605 So.2d 1032 (La.

1991), aff’d on rehearing, 605 So.2d 1050 (La. 1992) for the

proposition that a cause of action for direct negligence against

an employer for negligent failure to train may coexist with a cause

of action for vicarious liability. But whether Louisiana

recognizes direct negligence claims for negligent hiring is not in

dispute here. In Roberts, a victim accidentally shot by a cook

who had been commissioned as a deputy sheriff sued the cook, the

parish criminal sheriff, and the sheriff’s insurer. The state

high court examined primary liability under article 2315 and

vicarious liability under article 2320, and, although ultimately

finding no liability on the part of the employer sheriff, indeed

recognized that the tort of negligent hiring is a “separate an

independent” direct negligence claim against an employer. The

issue presented by Roberts concerned the liability of a municipal

employer for the acts of an off-duty deputy; thus, whether the

deputy was in the course and scope of employment was squarely at

issue in Roberts. (Indeed, ultimately in Roberts -- unlike here

– the theory of vicarious liability was not applicable because it

was determined that the off-duty deputy sheriff was not in the

scope of employment when he committed the negligent act; rather,

he was off-duty, drunk, and horse-playing with his gun at the time

of the accident. See id. at 1038.). This feature of Roberts --

that course and scope of employment was contested -- distinguishes

it from the line of persuasive authority the Court embraces here.

It is precisely because the employer concedes vicarious liability

that precludes the plaintiffs from pursuing both a respondeat

superior theory of liability and direct negligence claim for

negligent hiring or training against an employer. Whether Heath

was acting in the course of employment is not a triable fact issue

here: Swift admits that Heath was acting in the course and scope

of her employment when the collision occurred. If a jury finds

Heath was negligent, then so is Swift; if a jury finds Heath was

not negligent, then neither is Swift.

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fault between the parties when plaintiff’s vicarious liability

claims make [the employer defendant] entirely responsible for [the

employee driver’s] negligence. An allocation of fault under the

principles of comparative negligence is not necessary under the

facts of this case.”); Coffey, 2019 WL 5684258, at *3 (noting that

the public policy considerations advanced by the plaintiff

including deterrence of undesirable conduct, satisfaction of the

community’s sense of justice, and predictability “ignore[] the

fact that [the defendant employer] will be made to pay for

Plaintiff’s damages regardless of whether it is found liable

vicariously or directly” and other public policy considerations

“such as streamlining the litigation process and avoiding

unnecessary confusion for the jury weigh in favor of granting

[partial] summary judgment[.]”). Dismissing direct negligence

claims against an employer, which remains vicariously liable under

a theory of respondeat superior, does not subvert the plaintiffs’

right to be fully compensated for any injury they suffered that

was caused by the defendants’ negligence.

***

Accordingly, IT IS ORDERED: that Swift’s motion for partial

summary judgment on Pigott and Bickham’s independent negligence

claims is GRANTED. The plaintiffs’ claims against Swift for

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negligent hiring, training, supervision, and entrustment are

hereby dismissed.

New Orleans, Louisiana, February 5, 2020

% ,

MARTIN . C. ELDMAN

UNITED STATES DISTRICT JUDGE

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